1. Rogers vs. Koons
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Case

Photographer Art Rogers shot a photograph of a couple holding a line of puppies in a row and sold it for use in greeting cards and similar products. Internationally, renowned artist Jeff Koons in the process of creating an exhibit on the banality of everyday items, ran across Rodgers’ photograph and used it to create a set of statues based on the image.

Koons sold several of these structures, making a significant profit. Upon discovering the copy, Rodgers sued Koons for copyright. Koons responded by claiming fair use by parody.

Outcome

The court found the similarities between the 2 images too close, and that a “typical person” would be able to recognize the copy. Koon’s defense was rejected under the argument that he could have used a more generic source to make the same statement — without copying Rogers’ work. Koons was forced to pay a monetary settlement to Rodgers.

Significance

This is one of those famous cases that encompassed a larger issue in the art world, the issue of appropriation art. Can you build upon another’s work to create your own original piece? And if you do so, does that constitute derivative work?

It also brought up the issue of photography as art, was photography just a documentation of the world, or is it a creative and artistic product? Neither of these issues was entirely answered by the case, of course, but it has also become a reference used in many cases afterward.

You can parallel this with vector-tracing a photograph for your design. Are you creating a derivative work that subtracts value from the original artist?

2. The Associated Press vs. Fairey
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Case

Famous street artist Shephard Fairey created the Hope poster during President Obama’s first run for presidential election in 2008. The design rapidly became a symbol for Obama’s campaign, technically independent of the campaign but with its approval.

In January 2009, the photograph on which Fairey allegedly based the design was revealed by the Associated Press as one shot by AP freelancer Mannie Garcia — with the AP demanding compensation for its use in Fairey’s work. Fairey responded with the defense of fair use, claiming his work didn’t reduce the value of the original photograph.

Outcome

The artist and the AP press came to a private settlement in January 2011, part of which included a split in the profits for the work.

Significance

Though there wasn’t a court case and an actual verdict, this case created a lot of discourse around the value of work in these copyright battles. It’s unlikely that Garcia’s work could have ever reached the level of fame it did, if not for Fairey’s poster. Garcia himself stated he was “so proud of the photograph and that Fairey did what he did artistically with it, and the effect it has had,” but still had a problem with the fact that Fairey took the image without permission and without credit for it’s originator.

Credit, credit, credit! On 99designs you cannot use licensed work — but in the right circumstances you can use stock imagery. When doing so, make sure everyone knows the source.

3. Cariou vs. Prince
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Case

Richard Prince is a well known appropriation artist — one who transforms the work of others to create new meaning in his own work. For an exhibition in the Gagosian Gallery, Prince appropriated 41 images from a photography book by French photographer Patrick Cariou, claiming fair use that he created new meaning out of the photographs. Cariou argued that it wasn’t fair use, but copyright infringement.

Outcome

A judge ruled in favor for Cariou in 2011, claiming the changes made to Cariou’s photographs weren’t significant enough to constitute a change in meaning — fair use. However, the case is currently in appeal and the final decision has not yet been reached.

Significance

The initial ruling in this case in favor of Cariou has created huge divisions in the artistic community. It brings up questions about artistic intent and the subjectivity of art, asking “who was this judge to determine whether or not the appropriated artwork had enough meaning to be considered fair use” when the art could be interpreted differently by each person who viewed it. The jury is still out on this one.

Imitation vs. inspiration

Don’t be a designer who creates work too close to that of another. You have to make sure you are creating something original and not derivative.

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Update 4/25/2013

Not two weeks after this article was published, the original decision in this case was overturned and the judge ruled in favor of Prince for the majority of the works in dispute, claiming that Prince’s work transformed the work in the way that it was aesthetically different, and thus acceptable under the argument of fair use.

4. Modern Dog Design vs. Target Corporation
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Case

Seattle design firm Modern Dog utilized a series of sketches of dogs in their compendium put out by Chronicle Books in 2008. The firm alleges that illustrations from that design have been used in a T-shirt produced by Disney/Target for sale, and filed a lawsuit in 2011.

Outcome

TBD. There hasn’t been a decision yet in this case but Modern Dog has been campaigning online pretty heavily for publicity and funds to help with its legal fees over the issue.

Significance

The Modern Dog case has brought to light a question burning in the mind of many designers and artists — what happens if a major corporation with many more resources than me, utilizes my artwork for profit?

Modern Dog was recently forced to sell their studio to cover the legal costs associated with this battle, so it’s turning into a very extreme situation for them. We’ll have to keep an eye out for how this progressed and continues to change the conversation around this issue.

Always defend your designs. Regardless of who you’re going up against — if you think your design is in the right, then make it known.

5. Vanilla Ice vs. David Bowie/Freddie Mercury
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Case

Vanilla Ice had a hit, in 1991, with Ice Ice Baby — it sampled but did not credit the song Under Pressure by David Bowie and Queen. Though at first denying it, Vanilla Ice later retracted the statement saying it was “a joke”. Facing a lawsuit by the duo, Vanilla Ice ‘fessed to sampling the work.

Outcome

The case was settled privately out of court with Ice paying an undeclared sum of money and crediting Bowie/Queen on the track.

Significance

There’s really not a ton of meaning directly related to design with this one (except for, don’t use other people’s creative work!). But I couldn’t resist adding it. This is one of the most hilarious copyright cases ever.

There are more cases out there! Any you have learned from?

The author

Kaitlyn is part of the Community Team at 99designs.com. She grew up in Boulder, CO and went to school at Northwestern University in Chicago. When she's not blogging, she spends her time having adventures and being generally creative. She's all about having new experiences as often as possible!

How is it funny???
When you take a picture from someone else, is that not still stealing? Even if you technically change the original meaning of the work, is it still not stealing if any of the original is still there?
Frankly, I’m disgusted by you laughing at a matter like this. I’m a hobby photographer. Do my pictures not count as art?

crabbyoldartist

Apr 19 2013

Your pictures are art and copying is stealing. Period.

MychaelDarklighter

Apr 19 2013

But it’s not just “period”, that’s the entire point of the article and the cases that make up its subject. You’re dismissing the entire concept of appropriation out of hand, and both I and most of the judges above disagree with you.

Jacob Nordloh

Apr 19 2013

no offense to you sir but, no. they do not. i mean if i take a picture of something that is just standing on a rock and add detail shouldn’t count as art. art is something you put meaning into, not something that take 30 seconds. i frankly am an artist and I’m not entirely thrilled with stealing however something that isn’t worked on with heart on content is not art.

Worship Dancer

Apr 19 2013

i guess we know that you have no problem stealing other people’s work – pictures, music, ideas, etc.

Llixa

Apr 19 2013

Sad how some people did not even read the article before reacting. This is not a black or white issue that’s the whole point of the article, please people read about copyright law, fair use and the concept of transformativeness.

ksfkay

Apr 19 2013

These cases should not have eluded to the idea that designers shouldn’t create work that is too close to that of another, or that one should be creating something original and not derivative. While applauding originality and uniqueness, a designer’s role is also a voice to be heard as a critical expression allowed by law.

I would also see fit that these 5 cases could not paint an full picture for designers to based their ideas on. Especially since Modern Dog vs Target Corp. is still being discussed, and others were settled outside court.

I think this topic is really quite controversial. Really, I personally think more needs to done about the prosecution of the perpetrators, and i will defiantly be taking this matter up with my “man in charge”, if you know what i mean.

I think it’s fine as long as they credit you for the picture. “Imitation is the sincerest form of flattery”… I would be happy to know that people want to use my work as long as they don’t take credit and don’t sell it or anything without permission

You have to be careful those days since there is new services that will see if someone is using your picture and will still track if it has been altered. They will also take care of requesting credit/license $$ for the owner or even send a take-down notice.

You clearly aren’t a very artistic or even a considerate person and i’m just gonna leave the inappropriate part of your comment at that. but its not just that you are “hurting someone’s feeling” its that you’re actually impacting their lives economically. by taking their idea and use it to profit money of what would have been theirs. so i understand that you don’t see why anyone would care that someone else did the same thing as them or that you don’t think that art matters in general, but many people have to make money from that to live so you are putting them out of a job by copying their work.

your mom

Apr 19 2013

if you like music thats art if like taking pictures thats art if you have a job that requires talent also known as ART

Artwork drawn, is protected copyright. As you can draw, write, sing ( create… ) , whatever the content … published or unpublished… Is mine. But, how does it become so that others can publish and make money, removing the attribution and integrity of the statutory copyright notices that have never… NEVER been omitted by the author when publishing? Reference the Digital Million Copyright Act (DMCA) 1989. If placed, it must remain as originally posted. Infringers can not decide to remove… . Current case:
BRINKMAN v. MITCHELL-PROFFITT COMPANY et al
Florida Northern District Court
Judge: M Casey Rodgers
Referred: Charles J Kahn, Jr
Case #: 3:16-cv-00422
Nature of Suit 820 Property Rights – Copyrights
Cause 17:101 Copyright Infringement
Case Filed: Aug 24, 2016

Rogers vs. Koons
Photographer Art Rogers’ photograph of a couple holding a line of puppies which was sold for use in greeting cards should not have been used by Jeff Koons in his creation of an exhibit on the banality of everyday items. This was not considered fair use which is why he lost the case against him. The courts found the similarities between the two items too close and therefore ruled in favor of Mr. Rodgers. We should all care about cases like these because as Educators we have to always be cognitive of other people’s creations and not use them inappropriately.